A Smarter Gonzales?
Posted on Sat Oct 20, 2007 at 10:54:55 AM EST
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Adam Liptak provides a lucid explanation of President Bush's decision to nominate Michael Mukasey to replace Alberto Gonzales as Attorney General:
[I]n his two days of testimony this week, it became clear that Mr. Mukasey believes presidential power to be robust, expansive and sometimes beyond the power of Congress to control. That is perfectly aligned with the Bush administration’s views, and if Mr. Mukasey was initially a refreshing presence to the Senate Judiciary Committee, it was only because he justified in plain terms what other administration lawyers have said in secret memorandums often cloaked in obfuscation. ...He indicated, for instance, that he favored a narrow reading of the Supreme Court’s sweeping 2006 decision, Hamdan v. Rumsfeld, striking down the administration’s initial plan for military commissions to try prisoners at Guantánamo.
Is Mukasey just a smarter version of Gonzales--better able to defend the administration's indefensible positions? Liptak explains why Mukasey's reading of precedent to authorize expansive executive power in defiance of legislation is strained, at best.
Mr. Mukasey also said that Congress might be powerless to bar the president from conducting some surveillance without warrants. “The statute, regardless of its clarity, can’t change the Constitution,” Mr. Mukasey said. “That’s been true since the Prize cases.”But the Prize cases concerned whether President Lincoln had the power to impose a blockade of Confederate ports without Congressional authorization — not in the face of a Congressional ban. (Indeed, Congress later retroactively authorized Lincoln’s actions.) The distinction between Congressional silence, as in the Prize cases, and Congressional limitation, as in the 1978 law that required warrants for some intelligence surveillance, is an important one.
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